Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:99-cv-00279-SGB

Document 292

Filed 11/14/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS AMEC CONSTRUCTION MANAGEMENT, INC., f/k/a Morse Diesel International, Inc. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

Case No. 99-279 and consolidated cases (Judge Braden)

MOTION FOR SPOLIATION SANCTIONS Plaintiff, AMEC Construction Management, Inc. ("ACMI"), f/k/a Morse Diesel International, Inc., respectfully moves the Court to impose sanctions upon the Government for the Government's abject failure to institute document preservation protocols and issue document preservation notices at any time in the twelve years since the onset of this case and the destruction of documents that resulted from that failure. The Government flagrantly violated its obligations under the rules of this Court. For the reasons more fully stated in the accompanying Memorandum of Law in Support of Plaintiff's Motion for Spoliation Sanctions, the Court should draw an adverse inference against the Government that all documents destroyed would have been favorable for ACMI on the issues of liability and damages. Accordingly, the Court should vacate and reconsider its July 2005 and January 2007 decisions on liability and the October 2007 decision on damages in light of the adverse inference. Alternatively, the Court should apply an adverse inference solely to the damages issues and adopt ACMI's damages calculation theory of timevalue of money.

Case 1:99-cv-00279-SGB

Document 292

Filed 11/14/2007

Page 2 of 3

Additionally, ACMI requests that the Court impose a monetary penalty of an appropriate deterrent amount on the Government and award ACMI its attorney's fees and costs incurred in uncovering and litigating the spoliation issues. Respectfully submitted, s/ James D. Wareham James D. Wareham Attorney of Record for Plaintiff Kirby D. Behre Danielle W. Pierce Paul, Hastings, Janofsky & Walker LLP 875 Fifteenth Street, N.W. Washington, D.C. 20005 Tel: 202-551-1728 Fax: 202-551-0128 Date: November 14, 2007

Case 1:99-cv-00279-SGB

Document 292

Filed 11/14/2007

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that this 14th day of November 2007 I caused a copy of the foregoing Motion and Memorandum In Support to be served by electronic mail (via ECF) upon counsel for the Defendant as follows: Dominique Kirchner Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street N.W. Washington, DC 20530 Tracy L. Hilmer Civil Division U.S. Department of Justice 601 D Street, N.W. P.O. Box 261 Ben Franklin Station Washington, DC 20044

s/ Kirby D. Behre Kirby Behre

LEGAL_US_E # 76492793.10

LEGAL_US_E # 77183403.1